Developments in specific components of the high seas fisheries framework: an

As a result of the regulatory processes undertaken over the last 25 years, the international community has been given a set of specific and interrelated standards that specify, further develop and even complement the pillars on which the LOS Convention has constructed the high seas fisheries regime: the duty to conserve, the Flag State responsibility, and the duty to cooperate.

2.2.1. Sustainable approaches to conservation and management of high seas fisheries

As noted above, the elements of the required conservation of high seas fish stock are not precise enough to actually define the content of the obligation of the States – both fishing States and Coastal States. In addition, the provisions of the LOS Convention do not incorporate the current standards of environmental protection. The development of the duty to conserve the high seas fisheries, thus, has been strongly influenced by the development of international environmental law, which has specified but also broadened the concept of conservation as applied to marine living resources. That development has shifted the single species and economic approach of the LOS Convention to a more comprehensive and integrated approach to conservation that acknowledges the interlinkages between different fish stocks, between fish stocks and other marine species, and between fish stocks and the marine environment, including biodiversity, water column quality, etc.

Most of the developments have been considered in the elaboration of UNFSA and the FAO Code of Conduct for Responsible Fisheries. The UNFSA codifies the most important developments of the duty to conserve high seas fish stocks in Articles 5, 6 and 7. The Agreement has 8 main requirements, namely:

Firstly, it requires to adopt measures to ensure the long-term sustainability of straddling fish stocks and highly migratory fish stocks and promote the objective of their optimum utilization.¹³⁰ The long term sustainability of the stocks was a goal already considered in the LOS Convention. The optimum utilization, however, was considered only for the stocks in the EEZs and for highly migratory fish stocks. UNFSA develops the conservation goal by restating the goals already considered in Articles 61(3) and 119(a) of the LOS Convention:

ensure that such measures are designed to maintain or restore stocks at levels capable of producing maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global.¹³¹ In this regard, Annex II of UNFSA develops the application of points of reference, based on a precautionary principle, to ensure that the levels capable of producing maximum sustainable yield are maintained or restored. UNFSA further considers the need to take measures to prevent or eliminate overfishing and excess fishing capacity and to ensure that levels of fishing effort do not exceed those commensurate with the sustainable use of fishery resources.¹³² Fisheries subsidies, as one of the elements that contribute to over-capacity and overfishing, have also been specifically addressed.¹³³

130 UNSA, Article 5(a).

131 UNFSA, Article 5(b). The Johannesburg Plan of Implementation establishes as a goal to “maintain or restore stocks to levels that can produce the maximum sustainable yield with the aim of achieving these goals for depleted stocks on an urgent basis and where possible not later than 2015” (Johannesburg Plan of Implementation, supra note 128, chapter IV, paragraph 31(a)).

132 UNFSA, Article 5(h). Overfishing and fishing capacity has also been addressed through the FAO International Plan of Action for the Management of Fishing Capacity, adopted by the twenty-third Session of the FAO Committee on Fisheries in February 1999 and endorsed by the FAO Council during its November 2000 session (information provided at <www.fao.org>, link to International Plan of Actions, as reviewed on January 08, 2007). The Johannesburg Plan of Implementation call to “urgently develop and implement national and, where appropriate, regional plans of action, to put into effect the international plans of action […] for the Management of Fishing Capacity by 2005.” (Johannesburg Plan of Implementation, ibid, chapter IV, paragraph 31(d)).

133 The Johannesburg Plan of Implementation calls upon the States to “eliminate subsidies that contribute to illegal, unreported and unregulated fishing and to over-capacity, while completing the efforts undertaken at the World Trade Organization to clarify and improve its disciplines on fisheries subsidies, taking into account the importance of this sector to developing countries.” (Johannesburg Plan of Implementation, ibid, chapter IV, paragraph 31(f)). The 2001 Doha Declaration adopted at the Ministerial Conference of the WTO has highlighted the need to “clarify and improve WTO disciplines on fisheries subsidies, taking into account the importance of this sector to developing countries” (Doha Declaration, paragraph 28), as well as the

“relationship between existing WTO rules and specific trade obligations set out in multilateral environmental agreements” (Doha Declaration, paragraph 31). Further work has been done by the Negotiating Group on Rules

Secondly, UNFSA also considers the goal already set in Articles 61(4) and 119(1)(b) of the LOS Convention: adopt, where necessary, conservation and management measures for species belonging to the same ecosystem or associated with or dependent upon the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened.¹³⁴ This only element of a multi-species approach to fisheries management considered in the LOS Convention is, however, broadened by UNFSA which makes provisions for States to assess impacts of fishing, other human activities and environmental factors not only on target stocks but also on species belonging to the same ecosystem or associated with or dependent upon the target stocks.¹³⁵ It also provides for specific measures aimed at the protection of associated or dependent species, in particular endangered species: minimize catch by lost or abandoned gear, catch of non-target species, both fish and non-fish species, and other impacts on associated or dependent species, through measures including, to the extent practicable, the development and use of selective and cost-effective fishing gear and techniques.¹³⁶

Thirdly, UNFSA further develops the conservation goal to ensure the protection of not only target and non-target species, but also of the general health of the marine environment and biodiversity. For that end, it imposes on States the obligation to protect biodiversity,¹³⁷ to minimize pollution, waste, and discards;¹³⁸ and, to the extent practicable, the development of environmentally safe and cost-effective fishing gear and techniques.¹³⁹ This last measure has had concrete applications through the Driftnet resolutions adopted by the UNGA in 1989,¹⁴⁰

of WTO (information provided in World Trade Organization website <www.wto.org>, retrieved 10 January 2007).

134 UNFSA, Article 5(e)

135 UNFSA, Article 5(d).

136 UNFSA, Article 5(f). The protection of endangered non-target species has been further addressed through the FAO International Plan of Action for reducing incidental catch of seabirds in longline fisheries, also adopted by the twenty-third Session of the FAO Committee on Fisheries in February 1999 and endorsed by the FAO Council at the session it held in November 2000, and the Guidelines to Reduce Sea Turtle Mortality in Fishing Operations, adopted by FAO at its twenty-sixth session of the Committee on Fisheries, held in March 2005 (information provided at FAO Fisheries and Aquaculture website, <www.fao.org>, International Plan of Actions, retrieved 8 January 2007).

137 UNFSA, Article 5(g).

138 Ibid.

139 UNFSA, Article 5(f).

140 See: UNGA Resolutions A/44/225, A/45/197, and A/46/215.

and more recently, the UNGA Resolutions calling on States to protect vulnerable marine ecosystems, including seamounts, hydrothermal vents and cold water corals, from destructive fishing practices.¹⁴¹ Another concrete application is sought through the application of marine protected areas (MPAs), both in the EEZ and in the high seas.¹⁴²

Fourthly, UNFSA stress the need to ensure that the conservation and management measures are based on the best available scientific evidence.¹⁴³ To ensure this, and that such evidence is also reliable and comparable, it further states the need to collect and share, in a timely manner, complete and accurate data concerning fishing activities on, inter alia, vessel position, catch of target and non-target species and fishing effort, as set out in Annex I, as well as information from national and international research programmes.¹⁴⁴ On a global level, efforts have been made to collect and share fisheries information through the action of

141 See: UNGA Resolutions A/59/25, A/60/31 and A/61/105. During the last meeting of the UNGA, States further agreed on calling regional fisheries management organizations or arrangements, with competence to regulate bottom fisheries, to adopt and implement measures for their respective regulatory areas as a matter of priority, but no later than 31 December 2008. Recommended measures include identification of vulnerable marine ecosystems, assessment of the impacts of individual bottom fishing on the vulnerable ecosystems, adoption and implementation of measures to prevent significant adverse impacts on vulnerable ecosystems, closure of vulnerable areas for bottom fishing until the establishment of conservation and management measures to prevent significant adverse impacts on the ecosystems. States also agreed to call upon Flag States to either adopt and implement such measures, or cease to authorize fishing vessels flying their flag to conduct bottom fisheries in areas beyond national jurisdiction where there is no regional fisheries management organization or arrangement with the competence to regulate such fisheries.

142 The Johannesburg Plan of Implementation stipulates as a specific goal to establish representative networks of MPAs by 2012 (Johannesburg Plan of Implementation, supra note 128, chapter IV, paragraph 32(c)). The Plan of Implementation does not specifically endorse the establishment of MPAs in the high seas, but its need has been addressed in different fora. However, it has also been warned that “while acknowledging biodiversity conservation as a major, if not over-riding, objective of MPAs, especially in the context of the implementation of the 1992 Convention on Biological Diversity and the Jakarta Mandate, the Committee [on Fisheries]

recognized the potential impacts of MPAs on the fisheries sector including eventual social and economic effects on poor fishing communities. The Committee [on Fisheries] noted that the current knowledge was inadequate on both the biodiversity conservation function of MPAs and their function to achieving fisheries management objectives.” (FAO Fisheries Report No. 699. Report of the fourth session of the Advisory Committee on Fisheries Research, Rome, 10–13 December 2002 (FIPL/R699-En). FAO, Rome, 2002, available at FAO Fisheries and Aquaculture Website <http://www.fao.org/fi/default.asp>, Publications, retrieved 20 February 2007). In its last meeting in 2005, COFI recommended that FAO develop technical guidelines on the design, implementation and testing of MPAs, and some Members requested guidelines specifically on the use of MPAs on the high seas (FAO Fisheries Report No. 780, Report of the twenty-sixth session of the Committee on Fisheries, Rome, 7–11 March 2005 (FIPL/R780-En). FAO, Rome, 2005, available at FAO Fisheries and Aquaculture Website <http://www.fao.org/fi/default.asp>, Committee on Fisheries, retrieved 20 February 2007).

143 UNFSA, Article 5(b).

144 UNFSA, Article 5(j).

FAO¹⁴⁵ and the Coordinating Working Party on Fisheries Statistics.¹⁴⁶ UNFSA also stresses the need to promote and conduct scientific research and develop appropriate technologies in support of fishery conservation and management.¹⁴⁷

Fifthly, and although not explicitly considered as a general principle in Article 5 of UNFSA, the management of fish stocks also considered the application of the principle of preventative action, meaning that action must “be taken at an early stage and, if possible, before damage has actually occurred.”¹⁴⁸ Provisions inspired in the preventative action are, among others:

• the need to maintain stocks at levels capable of producing the maximum sustainable yield

• the use of reference points as developed in Annex I

• the need to assess the impacts of fishing

• other human activities, and environmental factor on target stocks and species belonging to the same ecosystem or associated with or dependent upon the target stocks

• the need to maintain the population of species belonging to the same ecosystem or associated with or dependent upon the target stock above levels at with their reproduction may become seriously threatened

• the protection of biodiversity

• the obligation of minimizing pollution, waste, discards, catch by lost or abandoned gear, catch of non-target species and impacts on associated or dependent species, in particular endangered species

• the obligation to take measures to prevent overfishing and excess fishing capacity

145 See: supra note 118 and 119.

146 The Coordinating Working Party (CWP) on Fisheries Statistics was created in 1960 and provides a mechanism to coordinate the fishery statistical programmes of regional fishery bodies and other inter-Governmental organizations with a remit for fishery statistics. Its main function are: a) continually review fishery statistics requirements for research, policy-making and management; b) agree on standard concepts, definitions, classifications and methodologies for the collection and collation of fishery statistics; and c) make proposals for the coordination and streamlining of statistical activities among relevant inter-Governmental organizations. The CWP has strongly facilitated improved data collection through standardized statistical reporting systems and is now looking ahead to efficiently coordinate and exchange this data with participating organizations. Although first mandated to cover North Atlantic fisheries, since 1995 the CWP has extended its remit to all marine water bodies. Currently, the following regional fisheries bodies, international and intergovernmental organizations are members of the CWP: CCAMLR, CCSBT, FAO, I-ATTC, ICCAT, ICES, IOTC, NASCO, NAFO, NEAFC, OECD, EU/Eurostat, SEAFDEC (South East Asian Fisheries), SPC (Secretariat of the Pacific Community) and IWC (information provided at FAO Fisheries and Aquaculture website <www.fao.org>, Fishery Information, Data and Statistic Unit FIDI, retrieved 8 January 2007).

147 UNFSA, Article 5(k).

148 Philippe Sands, Principles of International Environmental Law, 1994, as cited by Orrego Vicuña, supra note 8, at p. 153.

• the need to take into account the interests of artisanal and subsistence fishers

• the need to collect timely and accurate data and to conduct scientific research and develop appropriate technology

• recently, the principle has had another application in the UNGA Resolution A/61/105, Paragraphs 83, 85 and 86, which calls upon States and RFMOs to stop bottom fishing activities, which potentially has adverse impacts to marine ecosystems, until appropriate measures to prevent such adverse impacts are adopted.¹⁴⁹

Sixthly, following the developments in international environmental law, UNFSA calls to apply the precautionary approach.¹⁵⁰ In addition to the recognition of the principle in Article 5(c), Article 6 of UNFSA provides guidelines or standards aimed at the application of the precautionary approach to fisheries management.

Seventhly, UNFSA also calls on States Party to implement and enforce conservation and management measures through effective monitoring, control and surveillance.¹⁵¹

Finally, and although not listed in Article 5 of UNFSA, another element of the Agreement helps to clarify the duty to conserve living marine species: the compatibility principle established in Article 7. Indeed, Article 7(2) provides that:

conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety.

The compatibility principle implies that conservation has a minimum threshold or standards, and that is the conservation standard that the Coastal State has set for the straddling or highly migratory fish stocks. In fact, the conservation measures adopted for the high seas can’t undermine the effectiveness of the measures adopted by the Coastal State for that specific

149 The UNGA Resolution A/61/105 calls upon States and competent RFMOs to assess the adverse impacts of bottom fishing activities on vulnerable marine ecosystems, to take measures to prevent such impacts, and, until such measures are adopted, to close areas where vulnerable marine ecosystems are knows or are likely to occur, and to cease to authorize fishing vessels to conduct bottom fisheries in such areas, beyond national jurisdiction, where there is no regional fisheries management organization or arrangement with the competence to regulate such fisheries.

150 UNFSA, Article 5(c).

151 UNFSA, Article 5(l).

stock, thus “[t]he conservation policy of he coastal state will thus be the prevailing element of any high seas regime.”¹⁵²

2.2.2. Flag State Responsibility

The international community has made several attempts to define the vague concept of

‘genuine link’ that must exist between a State and a vessel in order to be registered and authorized to fly its flag. However, and because of the different interests at stakes, this task has proven to be challenging and no concrete results have been achieved. Instead, and as a parallel development, the focus has been shifted to define, not the elements than enable to issue nationality to a vessel, but the consequences of that act:

In international law, the entire problem of reflagging can be (and has been) approached from two essentially different perspectives. One is to adopt rules in order to prevent the act of reflagging itself by requiring a ‘genuine link’

between the vessel and the sate whose flag it flies. The other approach is to impose additional duties on the flag state in respect of its vessels, be these reflagged or not, fishing on the high seas […].¹⁵³

The Flag States’ responsibilities and duties with respect to fisheries were first addressed by the FAO Compliance Agreement, which sets forth the following obligations:

• to authorize the vessel to engage in fishing activities in the high seas and maintain a record of the authorized vessels;¹⁵⁴

152 Francisco Orrego Vicuña. “International Law of High Seas Fisheries”. In Olav Schram Stokke (ed.), Governing High Seas Fisheries: The Interplay of Global and Regional Regimes, Oxford University Press, New York, 2001.

153 Budislav Vukas and Davor Vidas, Flags of Convenience and High Seas Fishing: The Emergence of a Legal Framework, in Olav Schram Stokke (ed.), ibid.

154 Article III of FAO Compliance Agreement provides that “no Party shall allow any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless it has been authorized to be so used by the appropriate authority or authorities of that Party. A fishing vessel so authorized shall fish in accordance with the conditions of the authorization” and that “no Party shall authorize any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless the Party is satisfied that it is able, taking into account the links that exist between it and the fishing vessel concerned, to exercise effectively its responsibilities under this Agreement in respect of that fishing vessel.” It adds that no Party shall authorize any fishing vessel previously registered in the territory of another Party that has undermined the effectiveness of international conservation and management measures to be used for fishing on the high seas, unless it is satisfied that (i) any period of suspension by another Party of an authorization for such fishing vessel to be used for fishing on the high seas has expired; and (ii) no authorization for such fishing vessel to be used for fishing on the high seas has been withdrawn by another Party within the last three years. These provisions shall also apply in respect of fishing vessels previously registered in the territory of a State which is not a Party to this Agreement, provided that sufficient information is available to the Party concerned on the circumstances in which the authorization to fish